JENNY HILPERT, Employee/Appellant, v. MAID PRO and AUTO OWNERS INS. GRP., Employer-Insurer/Respondents.

DECEMBER 23, 2020
No. WC20-6348

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6200, SUBP. 6(C)(1)(b).   Substantial evidence supported the compensation judge's finding that the employee was a candidate for another surgical treatment and accordingly failed to meet one of the three necessary requirements for a trial of a spinal stimulator.  Where one of the necessary requirements is not met, the judge reasonably denied the employee's request that the employer and insurer pay for a psychological consultation intended solely to determine whether the employee also met another of the three necessary conditions under the rule.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. Gary M. Hall, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge:  Kathleen Behounek

Attorneys:  Allen R. Webb, Allen Webb Law, Savage, Minnesota, for the Appellant.  Jennifer M. Fitzgerald, Parker T. Olson, Cousineau, Waldhauser & Kieselbach, P.A., Mendota Heights, Minnesota, for the Respondents.




The employee appeals from the compensation judge’s denial of a psychological evaluation she requested as a necessary prerequisite prior to the implantation of a spinal cord stimulator.  We affirm.


The employee, Jenny Hilpert, sustained an admitted injury to her low back while working for the employer, Maid Pro, as a housekeeper on July 26, 2010.  She has continued to experience chronic low back pain and left lower extremity pain and numbness since the work injury despite conservative care, including physical therapy, medication, epidural steroid injections, acupuncture and diagnostic testing.

The employee treated with Dr. Thomas Rieser at Midwest Spine Institute.  Dr. Rieser eventually recommended fusion surgery at L4-5 and L5-S1.  The employee was seen for an independent medical examination by Dr. Terry Hood on March 31, 2011.  Dr. Hood agreed that the employee’s work injury aggravated a preexisting low back condition but did not recommend the surgery proposed by Dr. Rieser, because he considered the employee's pain complaints and clinical symptoms to be unexplained by the employee's MRI and EMG findings.  He instead recommended a referral to a chronic pain clinic.

The employee entered into a settlement agreement with the employer and insurer and an Award on Stipulation was issued in October of 2011.  The settlement provided the employee a lump sum payment of $20,000.00, less attorney fees, in return for a full, final and complete settlement of future benefits, with the exception of reasonable and necessary medical treatment not expressly listed in the agreement.  In particular, the settlement closed out payment for the two-level fusion surgery recommended by Dr. Rieser, as well as its associated post-surgery care.  Psychological treatment was also closed out.  The parties reached a further settlement agreement in August 2012 which resolved a dispute over the employee’s weekly wage and the employee's contention that there had been a prior underpayment of wage loss benefits.

By late August 2011, the employee had started treating with Dr. Sena Kihtir at United Pain Center.  Following a course of unsuccessful conservative treatment, Dr. Kihtir endorsed the idea of fusion surgery with decompression, as previously recommended by Dr. Rieser.  Dr. Kihtir also recommended a spinal cord stimulator for the employee as an alternative treatment option.

Dr. Hood saw the employee for a second, updated independent medical examination on May 23, 2012.  Dr. Hood again disagreed with Dr. Rieser’s recommendation for surgery, finding no radiographic evidence of nerve root compression, no instability requiring stabilization by fusion and no clear explanation for the employee's left leg pain and numbness.

The employee saw Dr. David Chang at United Pain Center on September 7, 2018. Dr. Chang’s diagnosis was post laminectomy syndrome, degeneration of the lumbar/lumbar sacral intervertebral disc, and an arachnoid cyst.  Dr. Chang suggested the employee might benefit from an anterior-posterior fusion at L4-L5 and L5-S1 but noted that this procedure was not guaranteed to resolve all of her pain.  The employee told Dr. Chang that she would like to proceed with surgery.

The employee continued to receive conservative treatment for her lumbar and leg symptoms at United Pain Center, but her symptoms did not improve.  When seen by Dr. Kihtir in April 2019, the employee requested a psychological consultation for possible implantation of a spinal cord stimulator.  Dr. Kihtir again made a recommendation for a spinal cord stimulator for the employee’s continued complaints of low back and left lower extremity pain and weakness and provided the employee with a referral for the psychological testing.

The employee has not continued to pursue the lumbar spine surgery recommended by Dr. Rieser, Dr. Chang, and Dr. Kihtir.

On December 20, 2019, the employee was seen by Dr. Eric Deal for an independent medical examination.  Dr. Deal opined that the employee’s July 26, 2010, work injury is not a substantial contributing factor to her need for medical treatment.  Dr. Deal did not recommend either spinal fusion surgery or a spinal cord stimulator.  He considered the employee's clinical findings unsubstantiated by diagnostic testing and noted indications of what he considered to be psychological factors and/or malingering, which he felt indicated that surgery would unlikely be successful.

The employee filed a medical request seeking approval of a psychological or psychiatric consultation to assess whether comorbidities were present that would preclude implantation of a spinal cord stimulator, so that she might qualify for a trial of such a stimulator and potentially its permanent implantation.  The employee’s claim was ultimately considered by a compensation judge.  At the hearing, the employer and insurer waived any defense that the proposed treatment was not causally related to the work injury.  They argued that a spinal cord stimulator was not reasonable and necessary treatment, based on the opinions of their evaluating physicians, and further argued that the employee did not meet the qualification requirements of the medical treatment parameters for a spinal cord stimulator.

Following the hearing, the compensation judge found that the employee does not meet the requirements of the medical treatment parameters applicable to the implantation of a spinal cord stimulator, and denied the psychological consultation that was sought in order to further qualify for and obtain that treatment.  The employee appeals.


On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).


The employee contends on appeal that the compensation judge erred in denying the psychological evaluation she requested as a prerequisite prior to the trial and potential implantation of a spinal cord stimulator.

The use of a spinal cord stimulator for treatment of low back pain from a work injury is governed by Minn. R. 5221.6200, subp. 6(C) (2019).  That rule[1] provides that spinal cord stimulators have very limited application and are indicated only if the treating health care provider has determined that a trial screening period of a spinal cord stimulator is indicated because the patient: (a) has intractable pain; (b) is not a candidate for another surgical therapy; and (c) has no untreatable major psychological or psychiatric comorbidity that would prevent the patient benefiting from this treatment.

The compensation judge found that although the employee has intractable pain, she does not meet the requirements of the rule because she is a candidate for another surgical therapy, namely the fusion surgery which has been recommended by Dr. Rieser, Dr. Chang, and Dr. Kihtir.  The compensation judge reasonably concluded that where the employee, as a surgical candidate, failed to meet subpart (b) of the rule, there was no basis to order the employer and insurer to pay for a psychological consultation solely intended to determine whether she met another of the rule's three necessary conditions, that of subpart (c).

The employee argues that the judge erred in finding that she was a "candidate” for another surgical therapy, relying on an online dictionary definition[2] of a “candidate” as being “one likely or suited to undergo or be chosen for something specified.”  She argues that under this definition, the evidence fails to support the judge’s finding because the employee is neither “likely” nor “suited” to undergo the recommended spinal fusion.

Specifically, the employee points to evidence that might suggest that she was not actually “suited” for a recommendation of spinal fusion.  She asserts that Dr. Rieser’s surgical recommendation was at best a cautious one, being supported primarily by the results of a discogram and not by demonstrated radiological findings of nerve root compression or stenosis.  She also disputes Dr. Chang’s recommendation, suggesting it is undercut by the contemporary scan results showing “stable” degenerative changes.  In addition, she questions Dr. Chang’s qualifications and his medical specialization, which were not in evidence.  She argues that, based on these concerns, the compensation judge should instead have accepted the views of Dr. Terry Hood and Dr. Eric Deal, both of whom considered surgery inappropriate and neither of whom considered her a surgical candidate.  We are not persuaded by these arguments.

A compensation judge's choice of expert opinion is generally to be affirmed by this court unless the opinion or opinions relied on lack adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  Here, we see no foundational defect sufficient to warrant overruling the compensation judge's reliance on the surgical recommendations of Drs. Rieser, Chang and Kihtir in finding that the employee is a suitable surgical candidate for the purposes of a psychological consultation under Minn. R. 5221.6200, subp. 6(c).

The employee also contends that she fails to meet the lay definition of a “candidate” for the recommended fusion surgery in that she claims to be "unlikely" to undergo the procedure, having closed out her claims to have the employer and insurer pay for that procedure in their 2011 settlement.  She argues that because the respondents are not obligated to pay for that surgery, she cannot be deemed “likely” to undergo it.

In the workers' compensation context, whether a patient is a surgical candidate is essentially a medical question, and hinges on whether a surgical procedure is considered to be a medically appropriate treatment option.  The rule's use of the phrase ". . . is not a candidate for another surgical therapy" does not depend on personal considerations, as opposed to medical ones, regardless of who pays for the surgery.

We note, also, that the definition on which the appellant bases her argument that she is not a candidate for surgery as she is unlikely to undergo surgery, alternatively defines a “candidate” for a specified thing as including “one likely or suited to . . . be chosen” for it.  There is a difference between being likely or suited for being “chosen” and for actually deciding to do something – the employee’s argument blurs this distinction.  In recommending surgery for the employee, her treating physicians clearly found her suited to be chosen for it.  Thus, she would meet the definition she relies on even if she is unlikely to choose to undergo the procedure.

Substantial evidence, including expert medical opinions, supports the findings of the compensation judge.  Fusion surgery has been recommended by three separate physicians. That other physicians may have disagreed does preclude the judge’s finding that the employee may be considered a “candidate” for surgery on the evidence in this case.  We therefore affirm.

[1] The rule provides:

   C.   Spinal cord stimulators have very limited application and are indicated only if the conditions of subitems (1), (2), and (3) are satisfied.

   (1) The treating health care provider determines that a trial screening period of a spinal cord stimulator is indicated because the patient:

  (a) has intractable pain;

  (b) is not a candidate for another surgical therapy; and

  (c) has no untreatable major psychological or psychiatric comorbidity that would prevent the patient from benefiting from this treatment. The treating health care provider shall refer the patient for a consultation by a psychologist or psychiatrist to assess the patient for psychological or psychiatric comorbidities.  If an untreated comorbidity is diagnosed, reassessment for treatment with a spinal cord stimulator is indicated if the psychologist or psychiatrist determines that the comorbidity no longer prevents the patient from benefitting from the treatment.

   (2) Before the trial screening is conducted, a second opinion, from a provider outside of the treating provider's practice, must confirm that all the conditions of subitem (1) are satisfied and the patient has no contraindications to a spinal cord stimulator.

   (3) Long-term use of a spinal cord stimulator is indicated if the treating health care provider documents that there has been at least a 50 percent improvement in pain during a trial screening period of at least three days, compared to the patient's pain level immediately preceding the trial screening period.

[2] The term “candidate” is defined at